Great Barrier Reef Marine Park Regulations (Amendment) (Cth)

Statutory Rules 1997No. 326 1

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Great Barrier Reef Marine Park Regulations2 (Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Great Barrier Reef Marine Park  Act 1975.

Dated 26 November 1997.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

ROBERT HILL

Minister for the Environment

____________

Part 1—Preliminary

101.   Commencement

101.1   Part 3 commences on 1 April 1998.

[NOTE:  The remainder of these Regulations commence on gazettal: see Acts Interpretation Act 1901, s 48.]

102.   Amendment

102.1   The Great Barrier Reef Marine Park Regulations are amended as set out in these Regulations.

Part 2—amendments commencing on gazettal

201.   Regulations 22 (Reconsideration and review of decisions of the Authority) and 22A (Statement to accompany notification of decisions)

201.1   Omit the regulations, substitute:

Notice of certain decisions

 “22. (1) The Authority must publish in the Gazette a notice of a decision of any of the following kinds as soon as practicable after making the decision:

1. (a)

   a decision on an application for the grant or variation of:

   1. (i)

      a relevant permission; or

   2. (ii)

      a permission to carry on a prescribed activity in the unzoned area; or

   3. (iii)

      a permission under regulation 15D (which relates to the discharge of waste);

2. (b)

   a decision under regulation 21B (which relates to the taking of animals onto Commonwealth islands);

3. (c)

   a decision to suspend or revoke a permission mentioned in paragraph (a) or (b);

4. (d)

   a decision on an application under regulation 19E for approval of a transfer of a chargeable permission;

5. (e)

   a decision under subregulation 20 (1), 20 (1A) or 20A (1) varying a condition or imposing a condition or additional condition on a permission;

6. (f)

   a decision under subregulation 21 (1AA) to vary a permission.

 “(2) The Authority may also give a person affected by the decision a written notice of the decision.

 “(3) A failure to comply with subregulation (1) about a decision does not make the decision invalid.

Contents of a notice

 “22A. (1) A notice published under subregulation 22 (1) or given to a person under subregulation 22 (2) must state:

1. (a)

   if the decision is a decision mentioned in paragraph 22 (1) (a), (b), (c), (e) or (f)—that a person whose interests are affected by the decision may:

   1. (i)

      obtain from the Authority a statement of reasons for the decision; and

   2. (ii)

      ask the Authority to reconsider the decision; and

2. (b)

   if the decision is a decision mentioned in paragraph 22 (1) (d)—that the proposed transferor or proposed transferee may:

   1. (i)

      obtain from the Authority a statement of reasons for the decision; and

   2. (ii)

      ask the Authority to reconsider the decision; and

3. (c)

   that a person at whose request the Authority has reconsidered the decision may apply, subject to the Administrative Appeals Tribunal Act 1975, to the AAT for review of the decision made by the Authority after reconsideration.

 “(2) A failure to comply with subregulation (1) does not make the relevant decision invalid.

Requests for reconsideration of decisions

 “22B. (1) A person whose interests are affected by a decision mentioned in paragraph 22 (1) (a), (b), (c), (e) or (f) may ask the Authority to reconsider the decision.

 “(2) A proposed transferor or proposed transferee of a chargeable permission who is dissatisfied with a decision (mentioned in paragraph 22 (1) (d)) about the proposed transfer may ask the Authority to reconsider the decision.

 “(4) A request for reconsideration must:

1. (a)

   be in writing; and

2. (b)

   set out the reasons why the Authority should reconsider the decision; and

3. (c)

   be given to the Authority within 21 days after the day notice of the decision is published in the Gazette.

 “(5) This regulation does not apply to a decision made under subregulation 22C (2).

Reconsideration of decisions

 “22C. (1) Within 40 days after receiving a request under regulation 22B about a decision, the Authority must reconsider the decision.

 “(2) After reconsidering a decision, the Authority may:

1. (a)

   affirm the decision; or

2. (b)

   vary it; or

3. (c)

   substitute another decision for it.

 “(3) To avoid doubt, after reconsidering a decision the Authority may make any decision that it could have made in the first instance.

 “(4) Unless the Authority’s decision after reconsideration is to affirm the reconsidered decision, the Authority’s decision after reconsideration supersedes the reconsidered decision for all purposes.

AAT review of decisions after reconsideration

 “22D. Application may be made under the Administrative Appeals Tribunal Act 1975 to the AAT for a review of a decision of the Authority under subregulation 22C (2).”.

202.   Regulation 54 (Definitions)

202.1   Definitions of “Criminal Code”, “evidential burden” and “legal burden”:

Omit the definitions.

203.   Regulation 56 (Offences)

203.1   Subregulation 56 (2):

Omit the subregulation.

Part 3—Amendments commencing on 1 April 1998

301.   Regulation 22B (Requests for reconsideration of decisions)

301.1   After subregulation 22B (2), insert:

 “(3) If the Authority determines under regulation 35A that a service or proposed service is not, or will not be, a secondary service, and the operator or intending operator of the service is dissatisfied with the Authority’s decision, the operator or intending operator may ask the Authority to reconsider the decision.”.

301.2   Paragraph 22B (4) (c):

Omit the paragraph, substitute:

1. “(c)

   be given to the Authority within 21 days after:

   1. (i)

      in the case of a decision mentioned in subregulation (3)—the day on which the operator or proposed operator is told in writing of the decision; and

   2. (ii)

      in any other case—the day notice of the decision is published in the Gazette.”.

302.   Regulation 34 (Interpretation)

302.1   Subregulation 34 (1):

Insert the following definitions:

“‘primary service’ means a service that:

1. (a)

   forms part of a tourist program; and

2. (b)

   is not a secondary service;

‘secondary service’ means a service that:

1. (a)

   forms part of a tourist program; and

2. (b)

   the Authority has determined, under regulation 35A, to be a secondary service;”.

302.2   Subregulation 34 (1) (definition of “transfer passenger”, paragraph (a)):

After “contiguous to,”, insert “or at a wharf or jetty within or partly within,”.

303.   New regulations 35A, 35B and 35C

303.1   After regulation 35, insert:

Secondary services

 “35A. (1) A service that forms part of a tourist program is a secondary service if:

1. (a)

   every visitor who uses the service is likely to have been recorded as a visitor for another chargeable permission on the same day; and

2. (b)

   the Authority determines, under this regulation, that it is a secondary service.

 “(2) A chargeable permission holder, or a person who has applied for a chargeable permission, may apply to the Authority for a determination that a service provided, or to be provided, as part of a tourist program by the applicant under the permission:

1. (a)

   is a secondary service; or

2. (b)

   in the case of an applicant for a chargeable permission—will be, if the permission is granted, a secondary service.

[NOTE:  Applications for relevant permissions are dealt with in regulations 7, 13AC, and 13B.]

 “(3) The application must be in writing and must set out, or be accompanied by, details of:

1. (a)

   the primary service provider who supplies, or proposes to supply, visitors to the program; and

2. (b)

   what percentage of visitors who use, or will use, the service are visitors for whom the standard tourist program charge (within the meaning of Subdivision A of Division 2) is payable; and

3. (c)

   how the applicant proposes to find out whether visitors who use the service are visitors for whom the standard tourist program charge is payable.

 “(4) The Authority may ask the applicant in writing to give the Authority any other information reasonably necessary to enable the Authority to consider the application.

 “(5) The Authority must determine the application within 28 days after:

1. (a)

   the Authority receives the application; or

2. (b)

   if the Authority asks the applicant to give it other information under subregulation (4)—the day on which the information is given to the Authority.

Notice of decision

 “35B.(1) After the Authority makes a determination under regulation 35A, the Authority must tell the applicant, in writing, of the decision.

 “(2) If the decision is that the service or proposed service is not, or will not be, a secondary service, the notice must set out:

1. (a)

   the reasons for the decision; and

2. (b)

   a statement to the effect that the applicant may apply to the Authority under regulation 22 for reconsideration of the decision, and, if the applicant is dissatisfied with a decision on reconsideration, to the AAT for review of the decision on reconsideration.

 “(3) A failure to comply with subregulation (2) about a decision does not make the decision invalid.

Numbering of secondary services

 “35C. The Authority must allot a unique number to a secondary service.”.

304.   Regulation 37 (Standard tourist program charge)

304.1   Omit the regulation, substitute:

“Subdivision A—Standard tourist program charges

Meanings of terms

 “36A. (1) In this Subdivision:

‘charge year’ means a period of 12 months beginning on 1 April;

‘standard tourist program charge’ has the meaning given by subregulation 36B (2).

 “(2) For this Subdivision, a visitor takes part in a program if the visitor participates (wholly or partly) in the excursions or activities provided in the Marine Park by the permission holder who provides the program.

Standard tourist program charge

 “36B. (1) In this regulation:

‘CPI’ means the Consumer Price Index (All Groups) for Brisbane, using, as a reference base, the financial year ending on 30 June 1990;

‘CPI base date’, for a charge year, means 31 December in the previous charge year.

 “(2) The standard tourist program charge is:

1. (a)

   during the charge years beginning on 1 April 1998 and 1 April 1999—$4.00; and

2. (b)

   during any later charge year—the greater of:

   1. (i)

      $4.00; and

   2. (ii)

      the amount worked out as set out in subregulation (3).

 “(3) The amount for the second charge year after the current charge year (‘the second charge year’) is worked out as follows:

1. (a)

   work out the indexed amount, for the second charge year, of the STPC by the formula:

$;

 where:

 ‘STPC’ is the standard tourist program charge for the current charge year; and

 ‘new CPI’ is the CPI on the CPI base date for the second charge year; and

 ‘old CPI’ is the CPI on 31 December 1997;

then:

1. (b)

   subtract the standard tourist program charge for the current charge year from the amount so worked out; and

2. (c)

   if the difference between the indexed amount and the standard tourist program charge for the current charge year is negative, or is positive but is less than $0.40, the standard tourist program charge for the second charge year is the same as that for the current charge year; and

3. (d)

   if the difference is $0.40 or more but less than $0.90, the standard tourist program charge for the second charge year is $0.50 greater than that for the current charge year; and

4. (e)

   if the difference is $0.90 or more but less than $1.40, the standard tourist program charge for the second charge year is $1.00 greater than that for the current charge year; and

5. (f)

   if the difference is $1.40 or more, the standard tourist program charge for the second charge year is $1.50 greater than that for the current charge year.

[Example: To work out the STPC for the charge year beginning on 1 April 2000, the calculation would be:

$;

(where ‘STPC/1998’ is the standard tourist program charge for the charge year that begins on 1 April 1998).

Suppose the result is $4.25. According to paragraph (c), the standard tourist program charge for the charge year that begins on 1 April 2000 is still $4.00. If the result were $4.55, the STPC for that charge year would be $4.50, according to paragraph (d).]

Payment of standard tourist program charge—general rule

 “37.Subject to regulations 37C, 37D, 37E and 37F, if a tourist program provided by the holder of a chargeable permission is or includes a primary service, the standard tourist program charge for a charge year is payable by the holder for each visitor who takes part in the program (except a visitor referred to in regulation 37F) during the charge year and each day, or part of a day, on which the visitor takes part in the program during the charge year.

Visitors who have already undertaken chargeable activity

 “37A. Charge is not payable under this Subdivision by a chargeable permission holder for a visitor and a day if:

1. (a)

   on the same day, the visitor has used a service for which the full amount of the standard tourist program charge is payable for him or her; and

2. (b)

   the permission holder has evidence (in the form of a dated receipt or dated ticket) that the visitor has done so.

Offence—altering ticket etc

 “37B. (1) A person must not alter the date on a receipt or ticket, or add a date to a receipt or ticket that does not bear a date.

Penalty: 10 penalty units.

 “(2) A permission holder must not use as evidence for regulation 37A a receipt or ticket that the permission holder knows has been altered (including altered by adding a date), or has reason to believe has been so altered.

Penalty: 10 penalty units.

Longer tours

 “37C. If a tour that is a primary service takes longer than 3 continuous days, the amount of charge that is payable under this Subdivision for a visitor who participates in the tour is 3 times the standard tourist program charge.

Very short tours

 “37D. If a tour that is a primary service takes 3 hours or less, the amount of charge that is payable under this Subdivision for a visitor who participates in the tour is half the standard tourist program charge, even if regulation 37E also applies to the tour.

Tours that arrive late or depart early

 “37E. (1) For this regulation:

1. (a)

   a tour that begins at a jetty, wharf or similar structure that is within or partly within the Marine Park is taken to enter the Park when it leaves the structure; and

2. (b)

   a tour that ends at such a structure that is within or partly within the Marine Park is taken to leave the Park when it arrives at the structure.

 “(2) If a tour that is a primary service (except a tour to which regulation 37C or 37D applies) enters the Marine Park after 5 pm on the first day of the tour, only half the standard tourist program charge is payable for that day for a visitor who participates in the tour.

 “(3) If a tour that is a primary service (except a tour to which regulation 37C or 37D applies) leaves the Marine Park before 6 am on the last day of the tour, only half the standard tourist program charge is payable for that day for a visitor who participates in the tour.

Visitors for whom charge is not payable

 “37F. Charge is not payable under this Subdivision by a permission holder for a visitor and a day if, on the day, the visitor participates in the permission holder’s tourist program only by:

1. (a)

   using any non-motorised beach equipment for which the operator is liable to pay charge under regulation 38; or

2. (b)

   using a dinghy for which the operator is liable to pay charge under regulation 39; or

3. (c)

   using any motorised water sports equipment for which the operator is liable to pay charge under regulation 40; or

4. (d)

   participating in an excursion or excursions for which the operator is liable to pay charge under regulation 41, 42 or 46.

When charge is payable

 “37G.Charge under this Subdivision is payable by the holder of a permission in April, July, October and January for the exercise of the permission in the preceding quarter.

“Subdivision B—Other charges”.

305.   Regulation 50 (Vending operations charges)

305.1   Paragraph 50 (1) (a):

Omit “regulation 37,”, substitute “Subdivision A of Division 2 or regulation”.

306.   Regulation 52 (Record-keeping etc)

306.1   Subregulation 52 (1):

Omit “regulation 37,”, substitute “Subdivision A of Division 2 or regulation”.

306.2   After subregulation 52 (1), insert:

 “(1A) A permission holder must keep a receipt or ticket used to obtain an exemption under regulation 37B for 2 years after the date on the receipt or ticket.”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 3 December 1997.

2. Statutory Rules 1983 No. 262 as amended by 1985 No. 169; 1986 No. 1; 1987 No. 247; 1988 No. 185; 1989 Nos. 269, 367 and 368; 1990 Nos. 9 and 35; 1991 Nos. 63, 257 and 296; 1992 No. 69; 1993 Nos. 188, 206 and 266; 1996 No. 277; 1997 No. 96.